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Case 3:20-cv-01866-IM Document 1 Filed 10/29/20 Page 1 of 15
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`MURPHY & BUCHAL LLP
`JAMES L. BUCHAL, OSB No. 921618
`3425 SE Yamhill Street, Suite 100
`Portland, OR 97214
`Telephone: (503) 227-1011
`Facsimile (503) 573-1939
`jbuchal@mbllp.com
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`BENBROOK LAW GROUP, PC
`BRADLEY A. BENBROOK*
`STEPHEN M. DUVERNAY*
`400 Capitol Mall, Suite 2530
`Sacramento, CA 95814
`Telephone: (916) 447-4900
`Facsimile: (916) 447-4904
`brad@benbrooklawgroup.com
`steve@benbrooklawgroup.com
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`*Pro hac vice applications to be submitted
`
`Attorneys for Plaintiff
`Great Northern Resources, Inc.
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF OREGON
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`PORTLAND DIVISION
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` Case No.:
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`COMPLAINT FOR DECLARATORY,
`INJUNCTIVE, OR OTHER RELIEF
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`GREAT NORTHERN RESOURCES, INC.,
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`Plaintiff,
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`v.
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`KATY COBA, in her Official Capacity as State
`Chief Operating Officer and Director of the
`OREGON DEPARTMENT OF
`ADMINISTRATIVE SERVICES; OREGON
`DEPARTMENT OF ADMINISTRATIVE
`SERVICES; THE CONTINGENT; and DOES
`1-10,
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`Defendants.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 3:20-cv-01866-IM Document 1 Filed 10/29/20 Page 2 of 15
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`Plaintiff Great Northern Resources, Inc. complains of Defendants Katy Coba, in her
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`official capacity as Chief Operating Officer and Director of the Oregon Department of
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`Administrative Services; Oregon Department of Administrative Services; and The Contingent and
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`alleges:
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`INTRODUCTION
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`1.
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`Plaintiff Great Northern Resources, Inc. (“Great Northern”) brings this lawsuit to
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`challenge the constitutionality of the State of Oregon’s use of strict race-based criteria for
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`distributing money from the Oregon Cares Fund for Black Relief and Resiliency (the “Fund”), a
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`$62-million dollar grant program established by the Oregon Legislature to provide financial relief
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`to individuals and businesses that have been adversely impacted by the Covid-19 pandemic.
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`Grants from the Fund are only available to individuals and business owners who “self-identify as
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`Black.” This express use of race in distributing government money is unprecedented and blatantly
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`unconstitutional.
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`2.
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`Great Northern is a small, family-run logging company based in Eastern Oregon
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`that harvests salvage timber and sells it to a local mill. Like many small businesses around the
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`state – and around the country – Great Northern’s business has suffered as a result of the
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`pandemic. Just when Great Northern was preparing its first timber delivery of the year, the local
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`mill stopped making new log purchases due to the uncertainty of the future markets for lumber.
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`Great Northern’s timber has dried, cracked, and is not in condition to be sold to the mill.
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`3.
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`After more than seven months of slow operations, the company has exhausted its
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`modest operating capital reserves and its revenue is far eclipsed by costs and expenses. Great
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`Northern estimates that the mill’s closure and subsequent moratorium on buying timber cost the
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`business $100,000, and the company projects a $200,000 loss for the year because of the
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`pandemic’s continuing economic effects.
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`4.
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`The pandemic’s harm to Great Northern should qualify it to compete in any
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`government-aid program for businesses that have been affected by Covid-19. And yet the
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`company is ineligible to receive a grant from the Fund because its owner is not Black.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`5.
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`This is unconstitutional. By distributing government benefits on the basis of race,
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`Oregon has violated the Equal Protection Clause of the Fourteenth Amendment. “[D]istinctions
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`between citizens solely because of their ancestry are by their very nature odious to a free people
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`whose institutions are founded upon the doctrine of equality.” Adarand Constructors, Inc. v.
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`Peña, 515 U.S. 200, 214 (1995) (internal quotation marks omitted). Despite the Equal Protection
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`Clause’s unmistakable command of racial neutrality, Oregon has established a relief fund that is
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`off limits for anyone who does not “self-identify as Black.” This “discriminatory classification
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`prevent[s] [Great Northern] from competing on an equal footing” with other applicants. Id. at 211
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`(quoting Northeastern Fla. Chapter, Associated Gen. Contractors of Am. v. Jacksonville, 508 U.S.
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`656, 667 (1993)).
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`6.
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`As set forth below, defendants’ conduct likewise violates federal antidiscrimination
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`law, including Title VI of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.
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`7.
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`Accordingly, Great Northern seeks declaratory and injunctive relief to invalidate
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`the state’s use of race as an essential factor in the grant process.
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`JURISDICTION AND VENUE
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`8.
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`This case raises questions under the Constitution of the United States, 42 U.S.C. §
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`1983, and Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d). This Court has
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`jurisdiction over all claims for relief pursuant to 28 U.S.C. § 1331. Assignment to the Portland
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`Division is appropriate because a substantial part of the events giving rise to this lawsuit occurred
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`in Multnomah County, where Defendant The Contingent is headquartered.
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`9.
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`Venue is proper under 28 U.S.C. section 1391(b).
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`THE PARTIES
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`10.
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`Plaintiff Great Northern Resources, Inc. is a corporation organized under Oregon
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`law.
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`11.
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`Defendant Katy Coba is the Chief Operating Officer and Director of the Oregon
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`Department of Administrative Services (“DAS”). Defendant DAS is the central administrative
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`agency of the Oregon state government, which implements the policy and financial decisions made
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`by the Governor and Oregon Legislature. Or. Rev. Stat. § 184.305; see Oregon Dep’t of Admin.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Servs., Administrative Overview (Jan. 2014). DAS is responsible for overseeing the State’s
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`management and distribution of funds received from the Federal government through the
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`Coronavirus Aid, Relief, and Economic Security Act’s $150 billion Coronavirus Relief Fund. As
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`COO and Director of DAS, Coba is responsible for managing and coordinating DAS’ programs
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`and operations, including the grant program and Fund that is the subject of this litigation. Coba is
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`sued in her official capacity.
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`12.
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`Defendant The Contingent is a Portland-based nonprofit corporation organized
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`under Oregon law. As set forth in further detail below, for all relevant purposes The Contingent
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`has acted jointly with the State of Oregon and Defendant DAS by administering the Fund such that
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`it is a state actor and has been acting under color of state law.
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`13.
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`The true names or capacities – whether individual, corporate, associate, or
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`otherwise – of the Defendants named herein as Does 1-10, are presently unknown to Plaintiff, and
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`are therefore sued by these fictitious names. Plaintiff prays for leave to amend this Complaint to
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`show the true names or capacities of these Defendants if and when they have been determined.
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`GENERAL ALLEGATIONS
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`A.
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`The Oregon Legislature Established The Fund To Provide Coronavirus Relief Grants
`On The Basis Of Race.
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`14.
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`On July 14, 2020, the Oregon Legislature’s Joint Emergency Board approved a $62
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`million grant to establish the Fund, using money allocated to the State by the Federal government
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`in the CARES Act’s $150 billion Coronavirus Relief Fund. The Fund is a grant program overseen
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`by DAS and administered by two Oregon-based community organizations (The Contingent and the
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`Black United Fund of Oregon) that are responsible for reviewing applications and making funding
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`decisions.
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`15.
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`DAS is “responsible for transmitting the [grant] funds and working with The
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`Contingent on ensuring that federal spending, reporting, and other legal requirements are met,
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`including that the funds are expended by December 30, 2020.” Exhibit 1, Oregon State Leg. Joint
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`Emergency Bd., Leg. Fiscal Office Analysis, Agenda Item 3: Oregon Cares Fund for Black Relief
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`and Resiliency (July 14, 2020) (“Cares Fund Agenda Report”), at p. 2.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`16.
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`The Contingent is the recipient of the $62 million grant from DAS and is the
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`organization responsible for managing business grants from the Fund. The Black United Fund of
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`Oregon is responsible for managing grants to individuals from the Fund.
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`17.
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`The Fund is explicitly targeted at providing relief to the “Black community,” to
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`support “Black relief and resiliency.” Ex. 1, Cares Fund Agenda Report at p. 1. To be eligible for
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`relief funds, individuals, families, and businesses must (1) live in or be based in Oregon, (2)
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`demonstrate hardship due to COVID-19, and (3) “self-identify as Black.” Id. Likewise,
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`community-based non-profits are eligible for funds if they can demonstrate a significant tie to the
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`Black community, which includes having an “[o]rganizational environment [that] is Black-focused
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`and [being] recognized by the community served as a Black-serving organization,” and at least
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`33% of the staff and a majority of the organization’s leadership must be Black. Id. Individuals
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`and families are eligible to receive grants up to $3,000, and businesses and community-based non-
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`profits can receive up to $100,000 in grants. Id.
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`18.
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`As part of the application process, individuals, families, and businesses seeking
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`grants from the Fund must state whether they “identify” as Black – and funding decisions are
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`based on whether applicants satisfy this threshold criteria.
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`19.
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`Consistent with restrictions imposed by the federal government through the CARES
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`Act, all funds allocated to the grant program must be expended by December 30, 2020. Cares
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`Fund Agenda Report at p. 2.
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`B.
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`Great Northern Applies For A Coronavirus Relief Grant From The Fund.
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`20.
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`Logging is an important business in Oregon. The State boasts 5 of the 10 largest
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`sawmills (by volume of sawn wood) in the country. Oregon leads the nation in softwood lumber
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`production, plywood production, and engineered wood. Sixty-five percent of Grant County in
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`Eastern Oregon is classified as forestland, and twenty percent of county residents have forest
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`sector jobs.
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`21.
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`Great Northern is a small, family-run logging company based in Grant County. It
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`was founded in 1991. The focus of Great Northern’s business is selective harvesting and timber
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`salvage – along with thinning and fuel reduction – on privately-owned and federally-managed
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 3:20-cv-01866-IM Document 1 Filed 10/29/20 Page 6 of 15
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`lands in Grant County, and then selling merchantable timber to local sawmills. Salvage logging is
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`the practice of harvesting dead, dying, diseased, or down timber, which is essential to responsible
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`and sustainable forest management.
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`22.
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`Around the time Great Northern was preparing its first delivery of the year in
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`March 2020, the local mill stopped making new log purchases because of uncertainty in the timber
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`market induced by the pandemic. By the time the mill started buying again several months later,
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`Great Northern’s timber had dried and cracked, and was not in condition to be sold to the mill.
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`(Unlike fresh timber that can sit for six months or more before being processed and cut into
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`lumber, salvage logs have a short life span before they crack.)
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`23.
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`Like many small businesses around the state, Great Northern’s business has
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`suffered during the pandemic. After over seven months of slow operations, the company has
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`exhausted its modest operating capital reserves and company revenue is far eclipsed by its costs
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`and expenses. Great Northern estimates that the mill’s closure and subsequent moratorium on
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`buying timber cost the business $100,000.
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`24.
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`Over the past few months, Great Northern has applied to several government-relief
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`programs to mitigate the impact of the pandemic, but so far it has received no financial assistance.
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`25.
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`In April 2020, Great Northern applied for a grant of up to $10,000 from the U.S.
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`Small Business Administration’s economic injury disaster loan program. The SBA denied the
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`company’s application. Great Northern submitted a second application to the SBA, which was
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`also denied.
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`26.
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`In connection with its grant applications, the SBA informed Great Northern that it
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`could obtain a loan from the SBA’s COVID-19 EIDL program, but the company declined because
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`it decided it would be too risky to take on debt given the uncertain economic outlook.
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`27.
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`On September 24, 2020, Great Northern applied for an emergency grant through the
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`Greater Eastern Oregon Development Corporation. The application was denied. Great Northern
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`resubmitted an application to the program on October 19, 2020. As of this filing, Great Northern
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`has not received a response to its second application.
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`28.
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`On October 4, 2020, Great Northern submitted a grant application to the Fund
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`through the Contingent’s website. As part of the application, Great Northern described the
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`pandemic’s impact on its business, including the effect of the mill closure and moratorium
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`discussed above.
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`29.
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`Great Northern also submitted financial details showing that its revenue had
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`dropped from approximately $150,000 in 2019 to less than $30,000 in 2020, and that the company
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`projected a loss of approximately $200,000 for the year.
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`30.
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`Finally, the application asked: “What percentage of owners of this business identify
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`as Black?” Great Northern answered “0.”
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`31.
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`According to the Contingent, the earliest Great Northern will receive a response is
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`October 31. But that response will be a denial: Great Northern is ineligible for a grant because its
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`owner isn’t Black. Great Northern brings this suit now, however, because it has sustained an
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`injury-in-fact by being forced to compete in a race-based system for government benefits. See
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`Adarand Constructors, 515 U.S. at 211; Northeastern Fla. Chapter, Associated Gen. Contractors
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`of Am., 508 U.S. at 666. Furthermore, time is of the essence because all funds in the grant
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`program must be expended by December 30.
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`C.
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`Defendants’ Use Of Race To Distribute Grants From The Fund Violates The Equal
`Protection Clause And Federal Antidiscrimination Law.
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`32.
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`The Fourteenth Amendment’s equal protection clause provides that, “No State shall
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`. . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., Amdt.
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`14, § 1.
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`33.
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`“[T]he central purpose of the Fourteenth Amendment was to eliminate racial
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`discrimination emanating from official sources in the States.” Pena-Rodriguez v. Colorado, 137 S.
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`Ct. 855, 867 (2017) (quoting McLaughlin v. Florida, 379 U.S. 184, 192 (1964)). “Laws that
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`explicitly distinguish between individuals on racial grounds fall within the core of [the Fourteenth
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`Amendment’s] prohibition.” Shaw v. Reno, 509 U.S. 630, 642 (1993). “‘[A]t the heart of the
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`Constitution’s guarantee of equal protection lies the simple command that the Government must
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`treat citizens as individuals, not as simply components of a racial, religious, sexual or national
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`class.’” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 730 (2007)
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`(plurality opinion of Roberts, C.J.) (quoting Miller v. Johnson, 515 U.S. 900, 911 (1995)) (internal
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`citation omitted). Put simply, “[d]istinctions between citizens solely because of their ancestry are
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`by their very nature odious to a free people whose institutions are founded upon the doctrine of
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`equality.” Rice v. Cayetano, 528 U.S. 495, 517 (2000) (internal quotation marks omitted).
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`34.
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`“[O]ne form of injury under the Equal Protection Clause is being forced to compete
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`in a race-based system that may prejudice [a] plaintiff.” Parents Involved, 551 U.S. at 719
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`(plurality opinion of Roberts, C.J.) (citing Adarand Constructors, 515 U.S. at 211; and
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`Northeastern Fla. Chapter, Associated Gen. Contractors of Am., 508 U.S. at 666).
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`35.
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`“[A]ll racial classifications, imposed by whatever federal, state, or local
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`governmental actor, must be analyzed by a reviewing court under strict scrutiny.” Adarand
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`Constructors, 515 U.S. at 227. Under strict scrutiny, the government has the burden of proving
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`that racial classifications “are narrowly tailored measures that further compelling governmental
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`interests.” Id. “The reasons for strict scrutiny are familiar. Racial classifications raise special
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`fears that they are motivated by an invidious purpose. Thus, [the Supreme Court has] admonished
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`time and again that, ‘[a]bsent searching judicial inquiry into the justification for such race-based
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`measures, there is simply no way of determining . . . what classifications are in fact motivated by
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`illegitimate notions of racial inferiority or simple racial politics.’” Johnson v. California, 543 U.S.
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`499, 505–06 (2005) (quoting City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989)).
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`36.
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`Defendants’ use of race as the qualifying factor in distributing grants from the Fund
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`fails strict scrutiny. It is not based on a compelling interest, nor is it narrowly tailored. Aderand,
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`515 U.S. at 227.
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`37.
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`The Supreme Court has stated repeatedly that addressing past societal
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`discrimination is not a compelling interest. “[G]eneralized assertion[s]” of discrimination cannot
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`justify remedial race-based action because they “provide[] no guidance for a legislative body to
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`determine the precise scope of the injury it seeks to remedy. It ‘has no logical stopping point.’”
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`J.A. Croson Co., 488 U.S. at 498 (quoting Wygant v. Jackson Bd. Of Educ., 476 U.S. 267, 275
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`(1986)). Likewise, “[a] generalized assertion of past discrimination in a particular . . . region is not
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`adequate because it ‘provides no guidance for a legislative body to determine the precise scope of
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`the injury it seeks to remedy.’” Shaw v. Hunt, 517 U.S. 899, 909 (1996) (citation omitted); see
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`also J.A. Croson Co., 488 U.S. at 499 (“an amorphous claim” of past discrimination insufficient to
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`justify race-based quota system). Rather, the Equal Protection Clause requires the government to
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`identify discrimination with specificity, have actual evidence of discrimination that demonstrates
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`race-based action is necessary, and tailor any race-conscious action to that discrimination. Shaw,
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`517 U.S. at 909; see also J.A. Croson Co., 488 U.S. at 500, 504.
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`38.
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`But the Oregon Legislature did precisely what the Supreme Court has said it cannot
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`do: It established the Fund based upon claims of generalized discrimination. The Joint
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`Emergency Board’s scant legislative record focuses broadly on general notions of past and present
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`societal discrimination. See Multnomah County Board of County Commissioners, Letter in
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`Support of The Oregon Cares Fund (July 10, 2020) (arguing that “Oregon’s (and the country’s)
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`racist history has created a present in which Black Oregonians have been disproportionately
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`impacted by the COVID pandemic,” and claiming that “The Oregon Cares Fund would address
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`this disproportionate impact by providing direct funding to Black individuals and families, Black-
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`led businesses, and Black-owned organizations.”); Washington County Administrative Office,
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`Letter RE: Emergency funding for the Oregon Cares Fund for Black Relief and Resiliency (July
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`13, 2020) (“We join the call for accountability and concrete change to end racial injustice and the
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`brutality that it gives rise to. We support the movement to dismantle systemic racism. We know
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`that systemic racism contributes to economic, social, and health disparities that directly impact our
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`county. [¶] We must, therefore, become an active part of the remedy. We are writing to
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`respectfully urge you to support the Funding of the Oregon Cares Fund for Black Relief and
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`Resiliency.”).
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`39.
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`The legislative analysis briefly mentions that “National and state data show that the
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`Black community is one of the communities experiencing a disproportionate share of negative
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`economic and health effects due to COVID-19,” referencing a single draft report from the National
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Bureau of Economic Research. Ex. 1, Cares Fund Agenda Report, at p. 1.1 Even accepting as
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`true the unfortunate circumstance that members of the Black community have been
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`disproportionately impacted by the pandemic, this is not a form of “discrimination” that can be
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`remedied by a race-based program. In any event, the promoters of the Fund tied this disparate
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`impact from the pandemic to generalized conditions by asserting that the pandemic has
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`“widen[ed]” pre-existing “gaps” due to “400 years” of prior generalized discrimination within
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`society. “[R]emedying past societal discrimination does not justify race-conscious government
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`action.” Parents Involved, 551 U.S. at 731 (opinion of Roberts, C.J.); Shaw, 517 U.S. at 909–910
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`(“[A]n effort to alleviate the effects of societal discrimination is not a compelling interest”); see
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`also Wygant, 476 U.S. at 276 (plurality opinion) (“Societal discrimination, without more, is too
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`amorphous a basis for imposing a racially classified remedy.”); id. at 288 (opinion of O’Connor,
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`J.) (agreeing with plurality that “a governmental agency’s interest in remedying ‘societal’
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`discrimination . . . cannot be deemed sufficiently compelling to pass constitutional muster under
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`strict scrutiny”).
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`40.
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`In fact, the materials presented to the legislature confirm that the Fund was
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`motivated by a general desire to remedy past societal discrimination, which is not constitutionally
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`permissible. Yet the Fund’s proponents put general societal discrimination front and center in the
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`materials they submitted to the Joint Emergency Board:
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`The Black community across Oregon is in the midst of two pandemics. The first is
`this country’s 400 years of racial violence and strategic divestment from the Black
`community, deepened here in Oregon through intentional policy and practice.
`More recently, it is the Covid-19 pandemic that is widening the gaps between the
`average white Oregonian and the average Black Oregonian. This gap must be
`narrowed through targeted investment in our community—for Black people, for
`Black-owned businesses, and for Black community based organizations. And
`that narrowing includes The Oregon Cares Fund. The Oregon Cares Fund
`(TOCF) is a $62 million targeted investment in the Black community from the
`CARES Act’s Coronavirus Relief Fund (CRF).
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`1
`The report is Robert W. Fairlie, NBER Working Paper 27309, The Impact of COVID-19
`On Small Business Owners: Evidence of Early-Stage Losses From The April 2020 Current
`Population Survey, Nat’l Bureau of Econ. Research (June 2020), online at
`https://www.nber.org/papers/w27309.pdf.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 3:20-cv-01866-IM Document 1 Filed 10/29/20 Page 11 of 15
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`Historic Disparities
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`The myriad of issues requiring remedy prior to and exacerbated by the COVID-19
`pandemic are institutional, and cannot be mitigated through one singular effort or
`fund. Black people began this pandemic far behind the average Oregonian whether
`it is in health, education, or economic prosperity. . . . Immediate intervention is
`necessary to enable the Black community to meet basic needs and help us begin to
`chart a course for our collective recovery.
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`Exhibit 2, Oregon State Leg. Joint Emergency Bd., July 14, 2020 Meeting Materials, Ex. 9,
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`Testimony – The Oregon Cares Fund, The Oregon Cares Fund: A Fund For Black Relief And
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`Resiliency, p. 3 of exhibit (labeled as page 8) (emphasis in original).
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`41.
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`Because Oregon did not link the grant program to specific, “identified
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`discrimination,” Defendants cannot establish that the program furthers a compelling state interest –
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`and it is therefore “almost impossible” to conduct a narrow-tailoring inquiry. J.A. Croson Co., 488
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`U.S. at 507. The Legislature’s superficial analysis confirms that Defendants cannot meet their
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`burden of showing that the use of race to distribute grants is narrowly tailored. Among other
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`things, narrow tailoring requires “serious, good faith consideration of workable race-neutral
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`alternatives.” Grutter v. Bollinger, 539 U.S. 206, 339 (2003); see also J.A. Croson Co., 488 U.S.
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`at 507 (minority set-aside program was not narrowly tailored in part because city had not
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`considered “the use of race-neutral means” to achieve its interest); Wygant, 476 U.S. at 280 n.6
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`(plurality opinion) (noting that the term “narrowly tailored” “require[s] consideration” of “lawful
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`alternative and less restrictive means”). But here, the Oregon Legislature gave no consideration of
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`race-neutral alternatives – it just established a grant program that is reserved for members of a
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`particular race.
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`42.
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`This record demonstrates that Defendants’ use of race as a basis for eligibility for
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`Fund grants cannot satisfy strict scrutiny. The Legislature failed to identify discrimination with
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`specificity and failed to develop a “strong basis in evidence” before taking race-conscious action.
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`Shaw, 517 U.S. at 909. The legislative record shows that the Fund is an attempt to address general
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`societal discrimination. Accordingly, the use of race as the basis for distributing grants from the
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`Fund violates the Constitution’s Equal Protection guarantee.
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`* * *
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`Case 3:20-cv-01866-IM Document 1 Filed 10/29/20 Page 12 of 15
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`43.
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`As set forth above, DAS is the agency responsible for implementing the Fund,
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`which included transmitting $62 million in federal relief funds to the Contingent to establish the
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`Fund, and “working with The Contingent on ensuring that federal spending, reporting, and other
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`legal requirements are met.” Ex. 1, Cares Fund Agenda Report at p. 2. This includes ensuring that
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`the Fund satisfy the Oregon Legislature’s directive that grant recipients meet the “[s]pecific
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`requirement[]” that they “self-identify as Black.” Id. at p. 1.
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`44.
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`The Contingent was jointly engaged with DAS to administer the Fund and charged
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`by the Oregon Legislature to distribute grants on the condition that recipients “self-identify as
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`Black.” The Contingent is therefore liable as a state actor for the purposes of 42 U.S.C.
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`section 1983 because the Oregon Legislature “create[d] the legal framework governing [the
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`Contingent’s] conduct,” “delegate[d] [the State’s] authority” to the Contingent to deploy race-
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`based classifications when overseeing the Fund, and generally “provided a mantle of authority” to
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`the Contingent such that the organization was acting as the state itself when distributing grants
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`from the Fund. Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 192 (1988).
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`45.
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`For those same reasons, Defendants’ intentional discrimination against Plaintiff
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`violates federal antidiscrimination law. The Supreme Court has “explained that discrimination that
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`violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution
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`that accepts federal funds also constitutes a violation of Title VI [of the Civil Rights Act of 1964].”
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`Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003). To a similar end, “purposeful discrimination
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`that violates the Equal Protection Clause of the Fourteenth Amendment will also violate [42
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`U.S.C.] § 1981.” Id.; see also Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (noting that “the
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`prohibition against discrimination in § 1981 is co-extensive with the Equal Protection Clause”).
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`46.
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`An actual and judicially cognizable controversy exists between Plaintiff and
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`Defendants regarding whether the Defendants’ use of race as an essential factor in distributing
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`grants from the Fund violates the Equal Protection Clause, Title VI of the Civil Rights Act of
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`1964, and 42 U.S.C. § 1981. Plaintiff desires a judicial declaration of its rights and Defendants’
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`duties regarding the constitutionality of Defendants’ distribution of government benefits on the
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`basis of race.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`CLAIMS FOR RELIEF
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`FIRST CAUSE OF ACTION
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`VIOLATION OF 42 U.S.C. § 1983 (EQUAL PROTECTION)
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`(As to Defendants Coba and The Contingent)
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`47.
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`Plaintiff incorporates here by reference paragraphs 1 through 46, supra, as if fully
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`set forth herein.
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`48.
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`As set forth above, Defendants, acting under color of state law, have used race as an
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`essential factor in considering applications and distributing grants from the Fund, i.e., applicants
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`must “self-identify as Black” to be eligible. By distributing government benefits on the basis of
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`race, Defendants denied Plaintiff of the opportunity to compete on an equal basis for a coronavirus
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`relief grant from the Fund, in violation of the Equal Protection Clause of the Fourteenth
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`Amendment to the Constitution.
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`SECOND CAUSE OF ACTION
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`VIOLATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 (42 U.S.C. § 2000d)
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`49.
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`Plaintiff incorporates here by reference paragraphs 1 through 46, supra, as if fully
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`(As to All Defendants)
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`set forth herein.
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`50.
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`As set forth above, the State of Oregon received funds received from the Federal
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`government through the Coronavirus Aid, Relief, and Economic Security Act’s $150 billion
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`Coronavirus Relief Fund, and used those funds to establish the Fund and grant program
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`administered by Defendants.
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`51.
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`Defendants have used race as an essential factor in considering applications and
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`distributing grants from the Fund, i.e., applicants must “self-identify as Black” to be eligible. By
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`failing to consider Plaintiff’s grant application on an equal

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